Taxes on guns and ammunition, or gun controls that raise the price of guns and ammunition, would be substantial burdens if they materially raised the cost of armed self-defense. A $600 tax proposed by Cook, Ludwig & Samaha [in another article in the same symposium for which my article was written -EV], justified by an assertion that "keeping a handgun in the home is associated with at least $600 per year in externalities," is one such example. "The poorly financed [self-defense] of little people," like their "poorly financed causes," deserves constitutional protection as much as the self-defense of those who can afford technologically sophisticated new devices or high new taxes. (See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) (striking down ban on door-to-door solicitation, partly on the grounds that "[d]oor to door distribution of circulars is essential to the poorly financed causes of little people"); see also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (striking down ban on display of signs at one's home, partly on the grounds that "[r]esidential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute.").) This is true whether the tax or expensive control is imposed on gun owners directly, or on gun sellers or manufacturers, just as a restriction on abortion can be a substantial burden even if it's imposed on doctors and not on the women who are getting the abortions.

High gun taxes should remain presumptively impermissible even if they are based on some (doubtless controversially calculated) estimate of the public costs imposed by the average handgun: The average takes into account both the very low cost stemming from guns that are always properly used by their owners, and the very high cost stemming from guns that are used in crime. The law-abiding owners thus are not just being required to "internalize the full social costs of their choices," even if you take into account as a "cost" the possibility that any gun will be stolen by a criminal. They are also being required to internalize the social costs of choices made by criminal users of other guns -- much as if, for instance, all speakers were charged a tax that would be used to compensate those libeled by a small subset of speakers.

Nonetheless, some modest taxes might not amount to substantial burdens, as a review of taxes and fees on other constitutional rights illustrates. Taxes based on the content of speech are unconstitutional, regardless of their magnitude. But this is a special case of the principle that discrimination based on certain kinds of characteristics -- race, sex, religiosity, or the content or viewpoint of speech -- is unconstitutional. Setting aside these special areas of constitutionally forbidden discrimination, and setting aside poll taxes, which were constitutional until the Twenty-Fourth Amendment forbade them, other kinds of taxes, fees, and indirect costs imposed on the exercise of constitutional rights are often permissible.

The government may require modest content-neutral fees for demonstration permits or charitable fundraising permits, at least if the fees are tailored to defraying the costs of administering constitutionally permissible regulatory regimes. The same is true for marriage license fees and filing fees for political candidates (though the Court has held that the right to run for office is protected by the First Amendment). The same is doubtless true of costs involved in getting permits to build on your own property, a right protected by the Takings Clause.

Likewise, regulations of the right to abortion are not rendered unconstitutional simply because they increase the cost of an abortion. The Court so held when upholding a 24-hour waiting period even though it required some women in states with very few abortion providers to stay in a hotel overnight or miss a day of work, and when upholding viability testing requirements that might have marginally increased the cost of an abortion. So long as the extra costs don't amount to "substantial obstacle[s]" to a woman's getting an abortion, they are constitutional.

At the same time, when a cost is high enough to impose a substantial obstacle to the exercise of a right for a considerable number of people, it is unconstitutional. This is likely also true when a cost goes materially beyond the cost of administering the otherwise permissible regulatory scheme, as several federal circuit court cases hold and some U.S. Supreme Court cases suggest. And if a law substantially burdens rightholders who are relatively poor, an exemption would likely be constitutionally required, as it has been with regard to permit fees for speakers and candidates.

I acknowledge that any such regime necessarily creates linedrawing problems and poses the danger that a genuinely substantial burden will be missed by judges who are deciding how much is too much. But, first, there is ample precedent for such tolerance for modest fees in other constitutional rights contexts, and it seems neither likely nor normatively appealing for the courts to conclude that the right to bear arms is more protected than these other rights. Second, the caselaw from those other areas can provide guideposts for the linedrawing process. And third, the caselaw from those other areas (as well as the general logic of the substantial burden threshold) can provide justification for a constitutional requirement that poor applicants be exempted from fees -- say, fees that dramatically increase the cost of a new gun, or that are required for periodic reregistration of an old gun -- that are substantial for them even if relatively minor for others.

Do you think that the legislative record would be a factor? I.e. a 20% sales tax on guns and ammo might be legal if the goal was to provide greater funding for fish&game to enforce hunting regulations, but not if the goal was to reduce gun demand? I.e. would the intent to place a burden on gun ownership on the part of the legislature be an important factor in deciding these cases?

I don't think the point is necessarily to single out abortion, but to turn the table and focus on different sacred cows.
In most cases abortion is elective surgery, so the tax could simply be on elective surgeries.

Not having the time to go through your 100 page document, I just did some word searches to see if you even mentioned the pre-1799 Tariff on importation of arms into America as an example of an early tax on firearm purchase.

Granted, it wasn't a general tax, but it was viewed as a tax by members of congress.

Sorry for not putting the a link to the actual bill, the server is down. But I can link to this bill for the moment. Its 1809 but it states that all tariffs on importation are temporarily removed (while all exports of arms are forbidden)

Rick: True enough. I actually meant to write "and vice versa" at the end of that, but I got an email while I was writing, checked it, and then forgot to add that last line.

That being said, these days I find far more hypocrisy and ideological disconnects from the right than from the left. Not to say the left is not full of hypocrites, too. Maybe it's just the recent influx of "family values" bible-thumping asstwat Republicans who have been caught cheating on their wives. Democratic politicians can cheat on their wives all they want to without being hypocrites.

A favorite back-door towards gun banning of the left is taxes - on purchase of guns, on ammo, etc. Also requiring insane million dollar insurance policices for gun owners, insane liabilities ( third party 'vicarious liability' based on '...or should have known', 'public nuisance', etc. )- the gun banners don't care HOW they make gun ownership impracticle or impossible, and will use any trick they can think of to do it.

Bruce M - thank you for throwing gas on a non-existent fire, and then striking a match to it, trying to turn the question in an abortion issue.

Pete: The name of this thread is "Targeted Taxes on Getting Abortions, Buying Guns, and Exercising Other Constitutional Rights". It is about abortion taxes and gun taxes. Care to explain how my comment somehow exceeds the scope of the initial post? I didn't say anything about, or make any judgment on the morality, or lack thereof, of abortion.

Leaving aside the undue burden of a tax on the exercise of any fundamental right, there is also a constitutional problem with the practice, used for the firearms tax, of (1) making it a federal crime to possess a firearm on which the tax had not been paid; and (2) refusing to accept payment of the tax (but using the evidence of possession from seeking to pay the tax in a criminal prosecution). See the correctly decided United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991) (which was later incorrectly overturned).

Maybe it's just the recent influx of "family values" bible-thumping asstwat Republicans who have been caught cheating on their wives. Democratic politicians can cheat on their wives all they want to without being hypocrites.

More closely related than you think. Religious Catholics, for example, are a bit more likely to get abortions than are religious Protestants. Of course this is one reason WHY Catholics really want to fight abortion-- to help ensure that they are no longer capable of hypocritical action.

Same thing goes with those who want to push a "family values" platform. They are expecting everyone to react the way they do. You can learn a lot about behavioral tendencies in folks through the sorts of accusations they throw around at others.

Always, liberty hangs in the balance. If there would be a possibility of putting a high tax on adultery, the folks who are afraid that they would otherwise have affairs would be the loudest proponents.

Yes talking about TAXING FIREARMS. I wonder WHY the NFA is being ignored. Could it be that it was passed as just a revenue tax on certain type of firearms, just like the taxes that Volokh is talking about but who's real purpose was gun control as EVERYONE knew. It is NOT just the money, it is the TIME and EXPENSE of submitting the paperwork and the wait (sometimes over 6 months). $200 was a lot in 1934.

when a cost is high enough to impose a substantial obstacle to the exercise of a right for a considerable number of people, it is unconstitutional

$200 easily falls into the above.

Why then isn't Volokh talking about the NFA? Because he agrees with it! He can't see that the taxes he is talking about are the SAME as the NFA and will be passed FOR THE SAME REASONS. Were there any questions when the NFA was passed that the weapons taxed fell under the 2ed? NO!!! That is why they went under the FICTION that the NFA was just a REVENUS TAX.

Please be consistant. If you agree with taxing firearms for GUN CONTROL reasons fine. But don't try and tell me there is

some modest taxes might not amount to substantial burdens

when history shows that the gun control people don't care about the constitution or the truth.

Why does it take 6 months or more to get a NFA tax stamp?
Because they can and no court will do anything about it.

So much for your modest taxes and the idea that the Courts would PROTECT the Peoples right to keep and bare arms!

Part of the issue with the NFA in this discussion is that the courts have generally held (incorrectly IMO) that owning military weapons is not protected by the 2nd Amendment. Firearms of the type typically used for sport or police work is OK. Owning an M-16 is not so much protected.

I acknowledge that any such regime necessarily creates linedrawing problems and poses the danger that a genuinely substantial burden will be missed by judges who are deciding how much is too much. But, first, there is ample precedent for such tolerance for modest fees in other constitutional rights contexts, and it seems neither likely nor normatively appealing for the courts to conclude that the right to bear arms is more protected than these other rights.

Beware venturing into the cold and lonely middle. As you can already see, it makes you twice as many enemies as overheated rhetoric and baseless accusations.

einhverfr, If we are talking about the LAST decades, yes you are right. But even Miller talked about military weapons not sport or police work. And today more and more police are useing sub-machine guns.

I am talking about the NFA as a revenue tax (fiction) and a gun control tax (reality).

Judges don't seem to be pro-2ed. That is why it is foolish to trust them to protect the 2ed. They haven't in the past. Even Heller is not pro-2ed. It is the minum that the Supreme Court could do and only that by one vote. It ignored the 2ed as protection against Government.

-- Part of the issue with the NFA in this discussion is that the courts have generally held (incorrectly IMO) that owning military weapons is not protected by the 2nd Amendment. --
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The Supreme Court's Miller decision essentially invalidated the 1934 NFA, if there was a factual finding that the weapon in question DID have a use in an organized militia, or for the common defense. Federal Courts have misread Miller. And now, federal courts actively FORBID a defendant from teaching the jury about the Miller case - it can't be brought to the jury's attention, and the federal courts adhere to their own false read of the binding precedent.
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Hamblen is litigating, in the 6th Circuit Court of Appeals, the misread of Miller by the Heller Court. The District Court asserted that it was bound to apply Miller as misstated by Heller.
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The federal courts are completely corrupt as to the 2nd amendment. The decisions are illegitimate, except for the fact that the courts have the force of violence behind their edicts.

Another issue you run into with the NFA is the current process takes ~5 months to transfer a weapon from the seller to the buyer on an ATF Form 4.

First the buyer must get his local sheriff to sign off on the purchase (the sheriff stating they do not know the person to be a felon and the firearm is not illegal there; lets not go into trusts/LLCs for the moment), then pay the $200 tax and wait 2 months for the ATF to enter the form into their database. Once it is in the database, it is approximately two more months before the form is approved by an examiner (mainly working through the backlog of other forms) and the stamp is approved.

Why should it take so long in today's world? A database search would let the seller (assuming a gun shop) check instantly if it is legal so no need for the sheriff to sign, the tax could be paid instantaneously via the internet and the buyer's credit card and the standard Form 4473 and instant background check can be used to verify the buyer's non-prohibited status. Or at least go to a form with blocks for each letter like a 1040 so it can be machine-read for database entry.

Do you think any court would allow a 5-month delay for abortions, printing circulars or road signs?

einhverfr I agree completely. It's why the most vocal opponent of gay rights, and the most homophobic people are almost always homosexual themselves. People comfortable with their sexuality don't protest, marginalize, and try to criminalize the sexuality of others. Like the Catholic Church, the Republican party is chock full of homosexuals. As children, they were made to feel ashamed at what they are, so they hide it by opposing it. They stupidly think that by doing so, nobody will suspect that they are gay.

I don't think they do it, as you say, to try to prevent themselves from being able to be hypocrites. Rather, I think they do it to try to hide what they are/do. For example, if you are cheating on your wife and don't want anyone to know, you would come out and support a law making adultery a crime. The logic is that if you support making action X a crime, then presumably you're not doing X. But, of course, you are - and you're supporting the prohibition as a disguise. Also, I think it makes people feel better about their bad actions... i.e. well I'm cheating on my wife, sure, but I'm leading the campaign to make adultery a crime and thus reduce the overall rates of adultery - so I'm a hero! The hypocrisy is thus justified in people with small minds like that.

Seems like targeting taxes towards abortions and guns is within the taxing and spending powers given to congress by the Constitution. If imposing higher taxes on cigarettes is constitutional, I don't see why these aren't as long as congress can justify its reasons for doing so.

Look at the semantic backflips the Roberts court had to make to avoid reading Miller as striking down the federal machine gun ban in Heller.

In terms of upholding the federal machine gun ban in Heller, this was result-oriented judicial activism of the sort which only comes along once every 30 years or so.*

* Comparing this to Roe v. Wade.... In Roe, like in Heller, the court sought to outline a comprehensive framework for all future questions regarding Ca specifi c element of constitutional rights. If Roe had been decided more similar to the way Casey was, I don't think the case would have been as polarizing. I am not opposed to holding that there is some Constitutional right to an abortion and in fact I am in favor of such an interpretation, but Roe and Heller are textbook examples of what courts should NOT do regarding dicta and legal frameworks/tests. I am concerned when justices seek to answer questions which are fundamentally not before them.

Even using the statistics most favorable to proponents of lawsuits against the gun industry, the benefits to society of defensive gun use are greater than the costs of firearm crimes by at least $90.7 million and perhaps as much as $3.5 billion per year.

Using more reasonable estimates, the benefits of defensive gun use exceed the costs of firearm crimes by as much as $38.9 billion - an amount equal to about $400 per year for every household in America.

It's why the most vocal opponent of gay rights, and the most homophobic people are almost always homosexual themselves.

You mean, like the most vocal opponents of racial discrimination are almost always bigots? The most vocal supporters of abortion rights are almost always secretly opponents of abortion? The most vocal supporters of the Miranda warning are almost always secretly rapists (like Miranda was)?

The excise tax on guns, ammunition, and reloading components is matched by a corresponding tax on fishing tackle and is used by the feds to supplement conservation moneys generated by the states for wildlife conservation not limited to game species, but all conservation efforts.

A number of years ago (the seventies?), the congress proposed to eliminate the excise taxes (I am not sure whether they wanted to do away with them altogether, or just to use the funds as part of the general funds available), and the sportsmen's alliances and conservationists generated such a volume of protest that congress renewed the act just as set out originally. The amount of the tax (again, I haven't got citations;. I am working from memories of thirty year's duration) is, I believe, eleven percent.

What about an apportionment argument? Guns are not income, so wouldn't a congressional tax have to be apportioned? This may become more of an issue because Obama is considering several non-income type of taxes.

Religious Catholics, for example, are a bit more likely to get abortions than are religious Protestants.

I've heard that Catholics are more likely to get abortions than at least certain types of Protestants. It doesn't surprise me for several reasons. I'm curious about this "religious" modifier that you're using, though. Without seeing the internals, I'm also always somewhat suspicious of any survey that treats self-identification as "Catholic" the same way it treats self-identification as "Protestant," because people who no longer practice their faith may still culturally identify as Catholic. Cf. Jews identifying as such for ethnic/cultural reasons.

Anyway, sometimes it seems to me that upwards of 90% of what gets labeled "hypocrisy" isn't. I have some vices that are not currently legal, but which I wish were, at least to some extent. I don't have the discipline - hell, no one has the discipline - to avoid sin all the time. That's why we pray "lead us not into temptation." Sometimes a push from the state helps.

I think that some currently legal things that I have indulged in should be illegal. I don't judge people for these things (judgment is, as Obama would say, above my pay grade), but there's nothing wrong with me pointing out that they're evil. I would be a hypocrite if I wanted to punish someone for doing something that I do, and I was unwilling to accept that punishment myself. But until these things are illegal, I don't have to worry about that.

Most states collect sales taxes on newspapers, and publishers probably pay various business taxes. Specific taxes on newspapers, however, are prohibited by the First Amendment (see Grosjean v. American Press Co. 297 U.S. 233(1933), see also here).

It might be easier to simply reject all taxes targeting constitutional rights because the alternatives are not very pretty. We could draw an arbitrary (and certainly, in some circumstances, unfair) line in the sand to determine the permissible amount of the tax. Or we could (at no small expense and burden) inquire into the economic circumstances of each and every person before deciding whether a tax, even a small one, would pose an undue burden on that individual. Neither option looks very desirable, and both options highlight problems with taxing constitutional rights.

The issue reminds me of the Supreme Court's rejection of poll taxes. See Harper v. Virginia Board of Elections,383 U.S. 663 (1966) (ruling that the imposition of a poll tax in state elections violated the Equal Protection Clause of the 14th Amendment and extending the 24th Amendment to state elections). Harper had challenged the $1.50 Virginia annual poll tax as a precondition for voting in state elections. Rather than get bogged down in deciding the proper amount of the tax, the Supreme Court rejected the tax altogether. While the reasoning in Harper may not extend to other constitutional rights, its solution of blocking the tax outright has some appeal.

It might be easier to simply reject all taxes targeting constitutional rights

That would also be the only correct approach. The key word, however, is "targeting". What has been allowed are small general taxes on practically everything, so not burdening the right unduly.

There is also a problem, implied but not clearly expressed in Miller, which was at its base a tax case, that if the government were to exempt everything that could support militia, as firearms, ammunition, and a few other things were exempted by the Militia Act of 1792, then nothing could be taxed, because practically anything can be used in militia in some circumstances. That is why the Miller opinion tried to limit the tax exemption to things more directly "related" to militia.

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